Foster parents and fundamental labour rights – Alan Bogg

The work of parenting is a labour of love. There is no work that is harder and there is no work that is more rewarding. How many parents have reflected upon this at 3 a.m., covered in sick and Calpol, reflecting on the prospect of a long day ahead at work? In their disoriented state, they might have craved a new trade union for parents to secure better working conditions. And had they been thinking straight they would then have realised the futility of the idea. For who would the parents’ union bargain with for better terms and conditions? And would the commodification of parenting be utterly destructive of its sacred value?

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These reflections may underlie some serious conceptual confusion about the personal scope of employment rights for foster parents. According to Jason Moyer-Lee, of the Independent Workers’ Union of Great Britain (IWGB), the work of foster caring is often highly precarious. Given the safeguarding responsibilities of local authorities, foster carers are subject to stringent oversight and supervision by the public and private organisations that coordinate foster care. In social and economic terms, these arrangements are often characterised by a high degree of subordination and economic dependence. This is exacerbated in a world where care is increasingly channelled through private providers operating according to commercial pressures. The labour of caring is hard and poorly remunerated. Yet the provision of care to the vulnerable is a public good of the highest social and economic importance, belied by its terrible terms and conditions.

In UK labour law, foster carers have generally been unable to access statutory rights relating to the living wage, working time protections, and basic trade union rights. If they are ‘employed’ at all, and even if there is any contract, foster parents are viewed as parents, not workers. In October 2017, and with the support of the IWGB, a foster carer, Sarah Anderson, brought a test case against Hampshire County Council alleging that she was a ‘worker’ and so entitled to working time protections. That test case is currently pending.

Under Romanian law, foster carers were treated ‘as pursuing an activity analogous to that of parents’ [para 17 of the Opinion]. Despite this parental conceptualisation of the role, the relevant national provisions also made provision for a special employment contract between, on the one hand, the foster carer and, on the other hand, the Directorate-General or an accredited private body. This contract was directed at the ‘protection of the minor’ and it provided the following stipulations:

activities for the upbringing, care and education of minors in care shall be performed at home; the programme of work shall be determined on the basis of the needs of the minors; free time shall be arranged in accordance with the programme of the family and of the minors in foster care; the continuity of the work performed shall be guaranteed during the statutory leave period, unless during that period separation from the minor fostered with the family is authorised by the Directorate-General [para 20].

The applicants in the case cared for the children in their own homes. These obligations were continuous during the time that the children were in the care of the foster carers. In consequence, the foster carers were unable to take their annual leave and weekly rest period entitlements. In the national court, the foster carers sought monetary compensation corresponding to the untaken leave. In technical terms, of course, the EU Working Time Directive (‘WTD’) does not permit the leave entitlement to be exchanged for remuneration. The German Government intervened and sought to argue that the points of European law were, in effect, otiose because the claimants were not seeking to assert their rights under the WTD. The AG rejected these arguments on the basis that there was a sufficient nexus between the claimants’ rights under the WTD and their claims for enhanced remuneration in national law.

In Sindicatul Familia Constanţa, the AG followed the decision in Union syndicale Solidaires Isère. This established that the concept of ‘worker’ in European law under the WTD was autonomous. It was based in a ‘subordination’ test. Such a test is thankfully shorn of the bristling technicalities of English law, such as the accursed ‘mutuality of obligation’. The enquiry is simply to ascertain whether for ‘a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration’ [para 58, Sindicatul Familia Constanţa].

According to AG Wahl, ‘an indicator in that regard may be the circumstance that a person acts under the direction of another person as regards, in particular, his freedom to choose the time, place and content of his work’ [para 59, Sindicatul Familia Constanţa]. This autonomous EU definition was not tied to the specific contractual characterisation in the national legal system. It is therefore possible to be a ‘worker’ in EU law even if one is self-employed under national law. Conversely, however, one might not be a ‘worker’ in EU law even if one were treated as working under a worker contract under national law. In this way, the personal scope of EU law might sometimes be under-inclusive relative to the national legal order.

On its face, this appeared to be an easy case. Given that the WTD implements fundamental social rights protected under Art 31 of the EU Charter, any derogations must be construed strictly. Foster parents did not fall within any of the derogations provided for in the Directive. The foster carers were working under special employment contracts recognised as such under Romanian law. They were performing services. Those services appeared to be under the direction of the public authority, given the extensive stipulations in the special employment contract. The services were remunerated. It would seem to follow that foster parents are workers under the autonomous EU definition.

Yet the AG in Sindicatul Familia Constanţa reached the startling conclusion that the foster carers were not ‘workers’ within the personal scope of the WTD:

in deciding whether the foster parents in question are to be considered as workers for the purposes of Directive 2003/88, the nature of the relationship between those foster parents and the competent authority should be of only peripheral significance for the assessment of that contractual relationship as a matter of EU law. Simply because the foster parents carry out their tasks under ‘an employment contract’, it does not follow that the contractual relationship between the foster parents and the competent authority should be conceptualised as one of employment for the purposes of Directive 2003/88 [para 71].

Given the importance of legal certainty, the proposition that X might be a worker under national law but not a worker under EU law is troubling. It would be better to treat the national categories of employment contract as a ‘floor’ for fundamental social rights, with the EU concept of ‘worker’ expanding the scope of protection (for example, in situations of disguised self-employment). More troublingly, the reasoning of AG Wahl has the potential to cut away swathes of existing social protection for deserving workers.

AG Wahl’s Opinion provides two broad justifications for carving out an exception from the obvious answer that foster carers are workers. Both are unwarranted glosses on the autonomous EU definition. The first gloss is ‘the relationship between the parties involved’. According to the AG, the relationship of foster parenting is not consistent with an employment relationship. The legal arrangement was described as:

a mandate to fulfil a particular obligation. Indeed, as can be seen from the order for reference, rather than performing work in a relationship of subordination and thus for and under the direction of the competent authority, the foster parents are mandated by the competent authority to care for the children in question like any other parent [para 74].

Within the scope of the mandate, the particular obligation of the foster carers is to prioritise and attend to the overriding needs of the child. To this end, AG Wahl observed that:

it should not be forgotten that children placed in foster care are particularly vulnerable. The requirements mentioned regarding annual leave and input from specialists in the upbringing of those children are arguably put in place to protect the children concerned. Indeed, it would be clearly contrary to the best interests of the children concerned to allow foster parents to take time off regularly from the children they are expected to care [para 79].

This ‘mandate’ analysis could of course be applied to any care work where clients are often ‘particularly vulnerable’ and so highly dependent on the carer. If this ‘mandate’ provides an exception to the EU autonomous definition of worker, this has the potential to withdraw basic legal protections from millions of care workers across Europe. Care work is often highly precarious work, and the contraction of social rights would render it more precarious. It would be better to recognise these arrangements as involving co-vulnerability as between worker-carers and clients. This repositions the normative focus on the employer, and its legal responsibilities to organise working time that respects the health and safety needs of workers and service-users. Fundamental social rights must not be subordinated to organisational or economic imperatives. Indeed, the effective enforcement of social rights can prompt organisations to reconfigure their working arrangements in creative ways that lead to healthy and efficient working practices. While the crisis in social care funding is systemic and serious, a factor which surely lurks behind many such decisions on working time and wage entitlements for care workers, the court’s job is to enforce the parties’ legal rights. The Preamble to the WTD makes this perfectly clear: ‘The improvement of workers’ safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations.’

The second gloss is ‘the nature of the activities performed’. According to the AG, the activity of foster caring is similar to parenting. Since we do not treat parents as within the scope of the WTD, it follows that we should treat foster carers in the same way. Of course, there is a basic distinction between the two activities. Foster carers provide care under a contractual arrangement based on remuneration. In this way, foster care is commodified in a way that parental care is not. Foster carers are subject to supervision and control by an employer. The decisions of that employer can have a decisive impact on the quality of foster carers’ working lives. More troublingly, however, AG Wahl referred to ‘the impossibility of reconciling the requirements of Directive 2003/88 with the best interests of the children placed in a foster family’ [para 86].

The implications of this line of reasoning are remarkable. The AG appears to be arguing that because the limits and entitlements of the WTD are practically unworkable given the specific challenges of this type of work, the WTD should not apply. Where this leaves us in a world of proliferating new forms of work in the Gig Economy is anyone’s guess. There will no doubt be a long queue of innovative Gig employers lining up to argue that the WTD does not fit the new demands of Gig work. Does that provide a justification for not applying the Directive? That would be most surprising. ‘Impossible to implement’ does not appear as a derogation listed in the Directive, no doubt for very good reason. It is amazing how effectively enforced social rights can prompt changes in working practices in ways that might have been unanticipated and unforeseen. It is better for judges not to pre-empt the outcomes of reflexive processes, which rather misses the point of them.

The halcyon days of AG Tizzano in the BECTU case now appear a faint memory. In that case, it will be recalled, the Advocate General identified the right to paid annual leave as a fundamental social right of particular importance. This provided the justification for a strict and purposive approach to interpreting the WTD, ensuring that precarious ‘casual’ workers were brought within the protective scope of the Directive. The Grand Chamber now regularly refers to the right to paid annual leave as a fundamental social right (see Stringer).

Article 31 of the EU Charter provides that ‘1. Every worker has the right to working conditions which respect his or her health, safety and dignity. 2. Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.’ The starting point for the CJEU must be the fundamental nature of the social rights at stake, which Article 31 guarantees to ‘every worker’. Foster parents deserve to have their dignity respected too.

About the author: Alan Bogg is Professor of Labour Law at the University of Bristol. He is Co-Director of the Bristol Centre for Law at Work. Previously, he was Professor of Labour Law at the University of Oxford.